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ACAS

Who exactly are ACAS?

Since April 2014, employees wishing to commence tribunal proceedings have to attempt Early Conciliation with their employer through Acas before they are able to issue proceedings. This is a fixed legal requirement and a tribunal will not accept a claim unless Acas have first issued a conciliation certificate (‘EC certificate’).

This is a procedural requirement, so it is highly unlikely that any employer would receive notification of a tribunal claim without first being contacted by Acas to discuss potential conciliation. Indeed, an EC certificate will only be issued to the employee once both parties have been given the chance to attempt conciliation with each other.

There are limited exemptions to the need to attempt Early Conciliation, the usual one being that the employee is part of a group of employees wishing to commence tribunal proceedings and one of the other employees to the action has already received an EC certificate regarding the same core dispute.

What will the telephone call mean?

This means that, at the time an employer receives an initial call from Acas, a tribunal claim has not been issued. At this time, Acas have merely been informed of a potential claim from the employee and wish to find out whether the employer will participate in discussions with an ACAS Conciliation Officer (a ‘CO’) acting as a neutral third party mediator. This call will normally be made within two days of the employee confirming to Acas that they wish to undertake Early Conciliation.

In the event that the employer agrees to participate in Early Conciliation with the employee, Acas will give the parties one calendar month to attempt to reach agreement. Should both parties still be negotiating at the end of this period, they can agree to extend conciliation by a further 14 days.

If the employer declines the opportunity to engage in conciliation at this stage (or makes themselves unavailable for contact), Acas can issue the EC certificate early and inform the employee of this.

What is Early Conciliation?

The Conciliation Officer’s main role will be to explain the procedures open to the parties, encourage the use of internal procedures (such as disciplinary and grievance procedures) and seek to establish common ground between parties to achieve a resolution.

Successful resolution of the issue will lead to the employee dropping any potential tribunal claim. Any settlement can be recorded in a legally binding contract, known as a COT3 form, which will ensure that the employee cannot later make an employment tribunal claim on the same facts and issues.

If agreement cannot be reached, Acas will issue the employee with an EC certificate containing a unique reference number at the end of the period of conciliation. This number can be inserted into an employment tribunal form and allows the employee to proceed with bringing a tribunal claim.

Absent Employees

What is the legal situation?

Any employee who intentionally fails to turn up to work, without an intention to return in the future, has fundamentally breached the terms of the employment contract by failing to make themselves available for work.

If they have resigned without giving any notice, they are in breach of contract for not working their notice period.

Can we force them to return to work?

No. Whilst many areas of law make provision for a judge to order an individual to do something they do not want to do, employment law does not allow a judge to order someone to work at a specified location.

What can we do if an employee walks out and fails to return the next working day?

A sensible route would be to write to the employee to inform them that you are aware of their failure to attend work and asking for their reasons.

It is useful to include a date by which the employee is to reply and the consequences of a failure to reply and/or return to work. These consequences could include disciplinary action and, depending
upon what was said when they walked out, treating their absence as a resignation. By far the best thing to do is take specialist advice at this stage.

Can we sue them for not working their notice period?

In theory, yes, because they are potentially in breach of contract. However, any claim for damages would be limited to the loss you have suffered arising from their breach. In other words, you would have to show that by the employee not working their notice period, you have lost a quantifiable sum of money and that you have done= what you reasonably could to avoid that loss or to keep it to a minimum.

For example, if you had a key employee working on a contract and the deadline for completing that contract was looming, but the employee resigned without notice a month before the deadline, you might need to employ agency staff at a much higher rate of pay to complete the contract. Let’s assume that the employee was obliged to give a month’s notice under their contract of employment. In this scenario, you might have a claim for the difference between what you have had to pay the agency staff and what you
would have paid the employee who left without working their notice period.

Does it mean we don’t have anything to worry about in terms of the employee claiming against us?

Not necessarily. It may well be that the employee resigned without working their notice period because they are going to allege they were constructively dismissed.

Employment Contracts

What is a contract of employment?

This sounds like a very basic question and in many ways it is.  A written contract of employment between an employer and an employee sets out the terms on which the employee is employed.  It will set out the rights the employee enjoys, such as salary, holiday entitlement, etc, but will also set out the employer’s rights, such as identifying the employee’s job title and duties and requiring the employee to comply with confidentiality obligations.

Does a contract of employment have to be in writing?

A contract of employment can be formed even when nothing is documented in writing.  If the reality of the relationship between the parties is one of employer and employee, there will be a contract of employment.  However, this does not mean an employer can choose to avoid giving an employee a written statement of terms without breaching their legal obligations.

What is a written statement of terms and what happens if we don’t give one?

Section 1 of the Employment Rights Act 1996 requires an employer to provide an employee with a statement of the employee’s main terms of employment.  This includes, amongst many other things: the rate and frequency of pay, hours of work, holiday and sickness entitlements, job title, length of notice and details of where to find the disciplinary procedure.

An employer must provide this statement within two months of the employee commencing their employment.  A failure to do so will allow a tribunal to award up to 4 weeks’ pay as an additional award should the employee ever successfully take the employer to an employment tribunal on separate grounds. An employee can also apply to an employment tribunal for a determination of their terms of employment if the employer has failed to provide a statement of terms, although this rarely happens in practice.

Do I have to provide both a statement of terms AND a contract of employment?

Not necessarily.  Most employers give their employees a contract of employment that incorporates all of the minimum requirements of a statement of terms.  A well drafted contract of employment will make sure all the statutory requirements are covered but will also go further to cover optional clauses that are advantageous to employers, such as confidentiality, post-termination restrictions on poaching clients, customers or employees and the right to lay-off an employee when there is insufficient work.

Why else does it matter if we don’t give our employees contracts of employment?

A contract of employment usually acts as the main document governing the relationship between employer and employee.  A failure to provide this document is likely to lead to uncertainty as to the actual role of the employee and the rules they are expected to follow. Imagine a scenario in which you tell an employee that they are expected to fulfil certain duties only to be met with a response from the employee along the lines of “that does not form part of my job”. A contract of employment incorporating or attaching a job description would have avoided any uncertainty.

Without properly drafted confidentiality clauses or post-termination restrictions, an employer has surprisingly little protection against an outgoing employee who might copy customer lists or sensitive data, or who might contact clients or customers shortly after they have left their employment encouraging those clients or customers to move with them to their new business.

How can it affect us as a business?

A failure to provide a written employment contract (or statement of terms) removes the employer’s ability to set a minimum period of notice from the employee to end the contract. This means that an employee without a written contract only has to provide one week’s statutory notice of their resignation, irrespective of how long they have been in the job.  Obviously this can seriously impact on the staffing and future planning of a business. Just imagine what you would do if one of your key personnel were to give you notice that they were leaving in a week’s time and if there was nothing you could do about it. Yet that is reality for many employers who do not issue employment contracts.

Is it ever too late to implement employment contracts?

No. Whilst it is preferable to provide a contract at the start of the employment relationship, it is possible to implement employment contracts at any point with the appropriate HR and legal support. If you only introduce a written contract at a later stage, many months or years after the employee began employment, you have to be careful to make sure you don’t create a dispute with your employee. The contract should reflect the common understanding of the employment relationship to date. You also need to bear in mind that when you introduce new terms that give you extra protection, to the employee’s detriment, you have to be able to show a mutual benefit. This is what we call in legal terms the requirement of “consideration”.

Does a failure to issue contracts of employment to my staff make me a bad employer?

No. Many small business owners are so busy focusing on what they do best that they simply run out of time to deal with contracts of employment.  When the business grows and new people join, much is left to trust rather than set out in lengthy documentation.  Of course, some small business owners make sure that their contracts are drafted and issued as they go along, but their example is not followed as widely as might be expected. Unfortunately, some business owners learn the hard way and only try to address the problem once it is much too late.

Settlement Agreements

I’ve decided I want a staff member to leave. What next?

An employer can have an ‘off the record’ conversation with an employee with a view to offering the employee a sum of money to leave the business. A change to the law in recent years means the employer can be protected from unfair dismissal claims arising from an “off the record” conversation, so long as the employer follows the correct procedure..

Accordingly, if an employer follows the Acas Code of Practice on settlement agreements, they are able to put a proposal across to an employee without running the risk of that proposal being used against them in a tribunal claim for constructive or unfair dismissal.

It is crucial that the Acas Code of Practice is followed, however, as failure to do so may remove this protection. If an employer is intending to make an offer to an employee, they should always seek employment law and HR advice at the outset.

What is a settlement agreement?

A settlement agreement is a legally binding contract that acts to waive an individual’s rights to bring any claim covered by the terms of the agreement to an employment tribunal or court.

This agreement must be in writing and usually includes some form of payment as consideration to the employee. settlement agreements are voluntary and an employee cannot be forced to sign one if they do not wish to do so.

How long is this likely to take?

The Acas Code of Practice recommends a minimum of 10 days is given to an employee to consider a settlement proposal.

What costs will I incur?

Apart from the cost of drafting the settlement agreement and the actual sum offered to the employee within it, the employer is usually responsible for paying the cost of the employee obtaining legal advice on the terms of the agreement.

This is because an employee must receive advice from a qualified independent legal adviser before the agreement becomes legally binding. Once the employee has had the terms of the agreement explained to them, and their legal adviser is happy that they have understood those terms, they are able to sign the agreement or negotiate amendments with their employer accordingly.

Grievance

One of our employees is complaining that another employee is bullying them. What should we do?

The most important thing is that you actually do something rather than ignore the issue and hope it goes away. Allegations of bullying behaviour can come in all forms and are by no means unresolvable. Sometimes one person’s perception of bullying is another person’s perception of efficient management or humour. The first thing an employer should do upon hearing a complaint of bullying is establish whether the complainant wishes to raise a formal grievance.

How do I deal with it as a grievance?

If the employee wishes to raise a formal grievance, your first port of call should be your company’s grievance procedure. Every employer must have a grievance procedure, as it is a requirement of section 1 of the Employment Rights Act 1996 for an employee to be notified where they can find the disciplinary and grievance procedures.

Will any other procedures be relevant?

It is likely that an Anti-Bullying and Anti-Harassment procedure will be relevant if your business has one in place.  Depending on the nature of the complaint, the Equal Opportunities Policy may also be worth consulting if the grievance relates to bullying on a discriminatory ground such as race, sex, sexual orientation, etc. The Whistleblowing Policy might apply where somebody is complaining of being bullied as a result of having made a protected disclosure under that policy.

What if the employee does not wish to raise a formal grievance or formal complaint?

You have still been made aware of the alleged conduct, so should ensure that a close eye is kept on the person complained of to ensure that they are not actively bullying any other members of staff. You should also consider whether the complainant may be afraid to raise a formal grievance out of fear.  For example, somebody might be afraid to raise a formal grievance about bullying by their manager if they think their manager will then bully them all the more for having raised a grievance.  If they are clearly distressed, support should be offered.

What if my investigation finds that bullying seems to have occurred?

If an employee’s grievance over bullying by a colleague is upheld, this will usually result in disciplinary proceedings being brought against the perpetrator. It is still important to make sure that a fair disciplinary process is followed and that the accused employee is allowed to put forward their version of events.

Sometimes actions of bullying can be so serious as to amount to gross misconduct, which can lead to summary dismissal.

What if it is one person’s word against another’s?

The burden of proof in determining a grievance or a disciplinary matter is “the balance of probabilities”.  In other words, it has to be more likely than not that what is being alleged did take place. To reach this conclusion, an employer must have some evidence on which they can rely to justify finding that an allegation is proven.  Sometimes grievances are not upheld, not because the complainant is believed to be a liar, but because it is not possible to prove one way or the other whose version of events is correct.